Is The Exclusionary Rule At Risk – Maybe

"Now officer, as you observed the defendant’s driving that night, did you see anything that caused you to believe he might be operating under the influence of some intoxicant?"

"I did. He was weaving all over the place, crossed the yellow line and the white lines, and almost hit another officer who happened to be nearby."

And you know what happens next – that "testimony" is taken as the God’s honest truth and the resulting confession and/or seized contraband is coming in as evidence against the defendant. Unless, that is, there is some other evidence that proves the officer’s stop and resulting seizures were not as he or she has testified. Imagine a priest in the back seat, who can come in and testify that he was reciting the rosary at the time and the car traveled in a perfect line and the poor officer is just mistaken. Could happen. And if it does – is the evidence (confessions, seized dope, whatever) admissible?

The usual answer is that evidence seized as a result of an illegal search is excluded, and cannot be used at trial. That general rule is already subject to more exceptions than there are holes on a golf course, but last month’s Supreme Court ruling in Herring vs. US has some arguing that the exclusionary rule may be on its last legs. May be – but it is not gone yet.

The point of excluding evidence that is not seized lawfully is to stop the police from disregarding the constitutional protections afforded an accused person. When I represent police officers charged with crimes they KNOW the law. They understand the need to have a warrant based on probable cause or circumstances that take the case outside the warrant requirement. They get it – that constitution thing is important! So now the Supremes have weighed in and taken another look at the exclusionary rule and its 100 years of operation in the courts. In it’s summary form here is what happened in Herring:

Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

So the "good faith" exception saves the day, no particular benefit to be derived by Herring or society as a whole because the authorities were only negligent. Notably, negligence is NOT a basis for a civil rights case generally, so in that sense the ruling is consistent with civil law. But is this the beginning of the end for the exclusionary rule? Chief Justice Roberts advocated the elimination of the rule when he worked for President Reagan as a staff lawyer. We likely know where he stands – get rid of it! It’s a waste of time and not fair. Guilty men have gone free!

First – it almost never happens that way. The number of times that guilty men or women have been set free by the exclusionary rule is simply not that big. Has the rule helped to reduce constitutional violations by police officers? I am not sure, but most in the criminal arena will answer depending on their position. As sworn defense types we recite the party line- "of course it has. Without that rule the cops would run amok!" OK – maybe not.

So is the rule on the way out or is this case not really that important? After all, the decision really rests on an exception – good faith.

The decision was 5 – 4, so it may be that the exclusionary rule, as a federal requirement, is in real jeopardy, if something happens to one of the four "liberal" justices. Remember that Kennedy joined the majority – well – whichever side he is on is almost always the majority. Most states have statutes and decisions applying the rule based on state law, so each state might take some time to decide the issue if the Supremes ever get rid of the rule. Remember – the safest course IF YOU OR A LOVED ONE OR A FRIEND OR SOME GUY YOU MET ON THE STREET is being asked about criminal conduct – is to follow Miranda – say nothing. And ask to see the warrant before they search.

About

I am Boise, Idaho criminal defense and DUI attorney Chuck Peterson, and for over thirty years I have been a practicing trial lawyer. I focus on providing the best defense possible to my clients facing criminal charges.

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